Dhanal Mantoolal Rao vs Ajit Kumar Banerjee

Chatterjee, J.—The first point urged by Mr. Ganguli in this petition under Article 227 of the Constitution is that the proceeding in this Court should be stayed under the provisions of the West Bengal Ordinance No. V of 1967. I do not agree.

Mr. Ganguli refers to the preamble of the Ordinance which runs as follows:

Whereas it is expedient, pending the enactment of further legislation, to provide for the temporary stay of proceedings for ejectment of thika tenants.

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The Governor is pleased, in exercise of the power conferred by Clause (1) of Article 213 of the Constitution of India, to make and promulgate the following Ordinance, namely:

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Therefore, the intention was that temporary stay would be granted with regard to the proceeding for ejectment. With that intention the Governor was pleased to promulgate in Section 3 of the Ordinance that all applications for ejectment of the thika tenant, under the provisions of the Calcutta Thika Tenancy Act which are pending at the commencement of this Ordinance, would be stayed. Similarly, all appeals from orders on such applications which were pending would also be stayed and finally all proceedings in execution of orders for ejectment will also be stayed. Therefore, with an intention to stay temporarily all proceedings for ejectment the Governor promulgated the Ordinance for stay of some of the matters and not all of the matters. The scope was limited to all applications which were pending, all appeals pending and all proceedings in execution under the provisions of the Calcutta Thika Tenancy Act.

The petition before me is not a proceeding under the Calcutta Thika Tenancy Act. It is a proceeding under Article 227 of the Constitution, but it relates to ejectment of a Thika tenant.

Secondly, revision petitions in the High Court are not referred to at all in Section 3 whatever may be the reason. Therefore, I find no reason that proceeding in revision under Article 227 of the Constitution should be stayed. Therefore, the first objection is overruled.

The second objection is that, as the tenant raised the pucca structure with the consent of the landlord, the tenant is not liable to be ejected. The simplest answer for that is that an order of remand by myself in this Court was not with regard to that matter and this matter does not seem to have been urged at the earlier hearing of the matter and, therefore, it should not be allowed to be raised at the present stage. Apart from that, I find no substance in it. The Calcutta Thika Tenancy Act refers of structures. It does not refer to pucca structure in the definition. Under the Transfer of Property Act temporary structures may be raised, but because of the fact of any acquiscence or any agreement allowing the tenant to raise the pucca structure, a lease for five years cannot be considered to be converted to a permanent lease; if the landlord agreed that there might be pucca structure, he merely agreed to that. But by that agreement he never implied to have granted a permanent lease and, therefore, this point has no substance or merits and must be rejected.

With regard to the third point the order of the Court below is to be varied. The Court below directed (though it was thoroughly unnecessary for that Court to determine) to the following effect:

Due to determination of the tenancy of the Appellant by this decree for eviction, the structure in the suit land shall vest in the applicant landlord with effect from the date of the decree according to provision of Section 10 of the Calcutta Thika Tenancy Act.

The section referred to by the learned Judge did not refer to a decree for ejectment but to ejectment itself. Section 10 says:

Notwithstanding anything to the contrary contained in any contract, on the determination of the interest of a thika tenant in the land comprised in the holding as a result of ejectment from holding of or of surrender or abandonment of the holding by the thika tenant, or otherwise, any structure standing upon such land and existing on the date of such determination shall vest in the landlord.

If the Legislature intended to say that such vesting would take place on the order for ejectment, if would have said so, but the Legislature has specifically provided that the section would apply if the tenancy is determined as a result of ejectment. No ejectment has yet taken place and, because of the Ordinance, no ejectment may take place during the period of the Ordinance. It was not necessary for the Court to determine the consequence of an order for ejectment. The consequence would follow at once. Hence, this part of the order must be set aside and I may observe that in case the tenants do not remove the structures before they are actually ejected, the structure may become the property of the landlord, but that is not for me to consider at the present stage.

Finally, under Clause (h), Section 108 of the Transfer of Property Act, the lessee may even after the determination of the lease remove at any time whilst in possession of the property leased out but not afterwards all things which he has attached to the earth. Therefore, even after the decree for ejectment or an order for ejectment, if the tenant be in possession, there is a provision in the Transfer of Property Act that the tenant may remove his structures. There is nothing in Section 10 which contradicts that right. I may further point out, Section 10 operates notwithstanding anything to the contrary contained in a contract, but it does not purport to operate notwithstanding anything contained in any other statute. Therefore, the provision of Section 108(h) will be attracted and the parties would still be governed by that provision.

Hence, the order for ejectment by the appellate authority is affirmed. The Petitioner tenant is directed to vacate the property by January 31, 1968, and he may remove his structure if he is so advised by that time.

The Rule is disposed of as above.

There will be no order for costs.